Wednesday, July 13, 2016

Ex-lesbian Ex-wife, Now Man, Ruled De Facto Parent

Brittany Conover gave birth to her son Jaxon Conover in 2010, who was conceived by artificial insemination without a legal father, and thereafter "married" her lesbian lover Michelle Conover, from whom she is now divorced. However, last week, the Maryland Court of Appeals ruled that Michelle Conover, who now claims to be a transgender named Michael and is suing for visitation rights to Jaxon, is the child's "de facto" parent.

“Gays and lesbians are particularly 'ill-served by rigid definitions of parenthood'...When gay or lesbian relationships end, at least one member will find itself in a court system ill-prepared to recognize its existence and to formulate rules to resolve its disputes.”-- Judge Sally D. Adkins wrote in the majority opinion

Maryland's highest court has ruled an adult who is intimately connected to a child's upbringing is entitled to visitation and a share of custody, if the child's best interests are served.

The Court of Appeals decision overturns an eight-year-old ruling. In that decision, judges declined to grant de facto parental rights to unrelated individuals, unless they could prove exceptional circumstances.

The boy [Jaxon] was born six months before [the two women] married and 17 months before they divorced.

De facto parents can include the partner of a lesbian who undergoes artificial insemination, a gay man whose partner adopts a child from a country that does not allow same-sex couples to jointly adopt, or a straight man who raises a child with a woman for years without formal adoption.

R. Martin Palmer Jr., an attorney for Brittany Conover, said the court usurped the role of lawmakers in defining a parent and may have created a situation in which stepfathers can take control of children from capable mothers.

“Seeking to serve the needs of the LGBT community has created a bad situation for traditional families and their children,” Palmer said.

Nancy Polikoff, a family-law professor at American University who studies LGBT issues, said the ruling does not address all issues nontraditional parents face, including what happens when parent split up before an artificially conceived child is born and whether the children of non-biological parents qualify for benefits after their death.

In the decision, the court established de facto parenthood for a person who formed a “parent-like” relationship with the child that “the biological or adoptive parent consented to and fostered,” provided that “the petitioner and the child lived together in the same household, that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation, and that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”

Michelle/Michael filed a court request for visitation rights claiming that she had standing as a parent under Maryland’s definition of “father” for children of unmarried parents. Michelle still identified as a woman at that time.

In 2013, the circuit court ruled that “[Michelle] is in fact a female, had not adopted the child, and in no way was related to the child, thus not sufficiently establishing that she could be the ‘father’ of the child.”

The lower court ruled that Michelle did not have parental standing, but as a third party, must first show that Brittany was an unfit parent or that exceptional circumstances existed in order to claim visitation rights.

Since the issue of de facto parenting isn't addressed under existing statute, the court endorsed standards set forth under a Wisconsin Supreme Court decision: That the biological or adoptive parent consented to and fostered the third party's parent-like relationship, that they lived together in the same household, that the de facto parent took on significant responsibility for the child's care, education and development without expectation of financial reward, and the parental relationship lasted long enough for them to be bonded and the child to feel dependent.

Divorce and child custody decisions have always been a messy and difficult business with, as Judge Sally Adkins writes in the opinion, "grave implications for all parties." The case isn't resolved by the Court of Appeals ruling, only the legal standing of Michelle Conover who, according to a court filing, transitioned to living as a transgender man after the divorce. Now, the matter of visitation will be back in the hands of the lower court.

What constitutes a parent? Clearly, the answer to that question has evolved over time, and the law has failed to keep up with that social progress. . . .